Citation Nr: 0726221
Decision Date: 08/22/07 Archive Date: 08/29/07
DOCKET NO. 04-41 546A ) DATE
)
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On appeal from the
U.S. Department of Veterans Affairs (VA) Regional Office (RO)
in Cleveland, Ohio
THE ISSUE
Entitlement to an increased rating for lumbosacral strain,
currently evaluated as 10% disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Thomas A. Pluta, Counsel
INTRODUCTION
The veteran had active service from July 1965 to June 1968.
This appeal to the Board of Veterans Appeals (Board) arises
from a July 2004 rating action that denied a rating in excess
of 10% for lumbosacral strain.
By rating action of October 2005, the RO denied service
connection for arthritis. The veteran filed a Notice of
Disagreement (NOD) in December 2005, and a Statement of the
Case (SOC) was issued in May 2006, but the veteran did not
perfect his appeal by filing a Substantive Appeal.
In September 2006, the veteran testified at a Board hearing
before the undersigned Veterans Law Judge at the RO.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.
2. Medical evidence does not show forward flexion of the
thoracolumbar spine to 60 degrees or less, combined range of
motion of the thoracolumbar spine to 120 degrees or
less, or muscle spasm or guarding that is severe enough to
result in an abnormal gait or abnormal spinal contour such as
scoliosis, reversed lordosis, or abnormal kyphosis.
CONCLUSION OF LAW
The criteria for a rating in excess of 10% for lumbosacral
strain are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.102, 3.159, and Part 4, including
§§ 4.1, 4.3, 4.6, 4.10, 4.7, 4.40, 4.45, 4.71, 4.71a,
Diagnostic Code 5237 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
In November 2000, the Veterans Claims Assistance Act of 2000
(VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107 (West 2002). To implement the provisions
of the law, the VA promulgated regulations codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The
VCAA and its implementing regulations include, upon the
submission of a substantially complete application for
benefits, an enhanced duty on the part of the VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify him what
evidence will be obtained by whom. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b). In addition, they define the
obligation of the VA with respect to its duty to assist a
claimant in obtaining evidence. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159(c).
Considering the record in light of the duties imposed by the
VCAA and its implementing regulations, the Board finds that
all notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.
An April 2004 pre-rating RO letter notified the veteran and
his representative of the VA's responsibilities to notify and
assist him in his claim, as well as of what was need to
establish entitlement to a higher rating (evidence showing
that the disability had gotten worse). Thereafter, they were
afforded opportunities to respond. The Board thus finds that
the veteran has received sufficient notice of the information
and evidence needed to support his claim, and has been
provided ample opportunity to submit such information and
evidence.
The aforementioned letter also provided notice that the VA
would make reasonable efforts to help the veteran get
evidence necessary to support his claim, such as medical
records (including private medical records), if he gave it
enough information, and, if needed, authorization, to obtain
them. That letter further specified what records the VA was
responsible for obtaining, to include Federal records, and
the type of records that the VA would make reasonable efforts
to get. Additionally, that letter requested the veteran to
furnish any evidence that he had in his possession that
pertained to his claim. The Board thus finds that the July
2004 RO letter satisfies the statutory and regulatory
requirement that the VA notify a claimant what evidence, if
any, will be obtained by him and what evidence will be
retrieved by the VA. See Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002).
In the decision of Pelegrini v. Principi, 18 Vet. App. 112
(2004), the U.S. Court of Appeals for Veterans Claims (Court)
held that proper VCAA notice should notify a veteran of: (1)
the evidence that is needed to substantiate a claim; (2) the
evidence, if any, to be obtained by the VA; (3) the evidence,
if any, to be provided by a claimant; and (4) a request by
the VA that the claimant provide any evidence in his
possession that pertains to the claim. As indicated above,
all 4 content of notice requirements have been met with in
this appeal.
Pelegrini also held that the plain language of 38 U.S.C.A.
§ 5103(a) requires that notice to a claimant pursuant to the
VCAA be provided at the time that, or immediately after, the
VA Secretary receives a complete or substantially complete
application for VA-administered benefits. In that case, the
Court determined that the VA had failed to demonstrate that a
lack of such pre-adjudication notice was not prejudicial to
the claimant. In the matter now before the Board, the April
2004 document fully met the VCAA's notice requirements, and
was furnished to the veteran prior to the July 2004 rating
action on appeal.
More recently, in March 2006, during the pendency of this
appeal, the Court issued a decision in the consolidated
appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006), which held that, in rating cases, a claimant must be
informed of the rating formula for all possible schedular
ratings for an applicable rating code. In this case, the
Board finds that this was accomplished in the November 2004
SOC and the November 2005 Supplemental SOC, and that this
suffices for Dingess/Hartman. The Court also held that the
VA must provide information regarding the effective date that
may be assigned; such notice was provided in a March 2006 RO
letter.
Additionally, the Board finds that all necessary development
on the claim currently under consideration has been
accomplished. The RO, on its own initiative, has made
reasonable and appropriate efforts to assist the appellant in
obtaining all evidence necessary to substantiate his claim,
to include obtaining available post-service VA medical
records through 2005. In May 2004, the veteran was afforded
a comprehensive VA examination, a report of which is of
record and has been considered in adjudicating this claim. A
transcript of the veteran's September 2006 Board hearing
testimony has been associated with the record.
Significantly, neither the veteran nor his representative has
identified, and the record does not otherwise indicate, any
existing, pertinent evidence, in addition to that noted
above, that has not been obtained. In his December 2005 NOD,
the veteran stated that he had no additional evidence to
submit in connection with his claim. The record also
presents no basis for further development to create any
additional evidence to be considered in connection with the
matter currently under consideration.
Under these circumstances, the Board finds that the veteran
is not prejudiced by appellate consideration of the claim on
appeal at this juncture, without directing or accomplishing
any additional notification and/or development action.
II. Analysis
Disability evaluations are determined by comparing a
veteran's present symptomatology with the criteria set forth
in the VA's Schedule for Rating Disabilities, which is based
on average impairment of earning capacity. 38 U.S.C.A.
§ 1155; 38 C.F.R. Part 4. When a question arises as to which
of 2 ratings applies under a particular diagnostic
code (DC), the higher rating is assigned if the disability
more closely approximates the criteria for the higher rating;
otherwise, the lower rating applies. 38 C.F.R. § 4.7. After
careful consideration of the evidence, any reasonable doubt
remaining is resolved in favor of the veteran. 38 C.F.R.
§ 4.3.
A veteran's entire history is to be considered when making a
disability determination. See generally 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where
entitlement to compensation has already been established and
an increase in the disability is at issue, it is the present
level of disability that is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
38 C.F.R. § 4.71a, DC 5237, pursuant to the criteria set
forth in a General Rating Formula for Diseases and Injuries
of the Spine, provides a 10% rating for lumbosacral strain
where forward flexion of the thoracolumbar spine is greater
than 60 degrees but not greater than 85 degrees; or where the
combined range of motion of the thoracolumbar spine is
greater than 120 degrees but not greater than 235
degrees; or where there is muscle spasm, guarding, or
localized tenderness not resulting in abnormal gait or
abnormal spinal contour; or where there is vertebral body
fracture with loss of 50% or more of the height. A 20%
rating requires forward flexion of the thoracolumbar spine
that is greater than 30 degrees but not greater than 60
degrees; or that the combined range of motion of the
thoracolumbar spine be not greater than 120 degrees; or that
there be muscle spasm or guarding severe enough to result in
an abnormal gait or abnormal spinal contour such as
scoliosis, reversed lordosis, or abnormal kyphosis. A 40%
rating requires that forward flexion of the thoracolumbar
spine be 30 degrees or less, or favorable ankylosis of the
entire thoracolumbar spine. A 50% percent rating requires
unfavorable ankylosis of the entire thoracolumbar spine. A
100% rating requires unfavorable ankylosis of the entire
spine. These criteria are applied with and without symptoms
such as pain (whether or not it radiates), stiffness, or
aching in the area of the spine affected by residuals of
injury or disease. 38 C.F.R. § 4.71a, DCs 5235-5243.
Forward flexion to 90 degrees, and extension, lateral
flexion, and rotation to 30 degrees each are considered
normal range of motion of the thoracolumbar spine. 38 C.F.R.
§ 4.71a, Plate V.
In this case, the pertinent evidence provides no basis for
more than a 10% rating for the veteran's lumbosacral strain,
as the clinical findings to warrant a 20% rating (forward
flexion of the thoracolumbar spine to 60 degrees or less;
combined range of motion of the thoracolumbar spine to 120
degrees or less; or muscle spasm or guarding that is severe
enough to result in an abnormal gait or abnormal spinal
contour such as scoliosis, reversed lordosis, or abnormal
kyphosis) have not been objectively demonstrated.
On May 2004 VA examination, the veteran complained of back
pain with prolonged walking, standing, sitting, or bending.
He denied any bowel or bladder incontinence, or use of a back
brace or cane. He stated that rest, whirlpool treatment, a
TENS unit, and medication alleviated the pain. He stated
that he was able to perform activities of daily living but
was no longer able to ride a bicycle, golf, and bowl as he
did previously. On current examination, the veteran walked
with a slight limp, and he could walk on his heels and toes.
Straight leg raising was negative. There was no
thoracolumbar deformity or tenderness to palpation of the
lumbosacral spine with the veteran standing erect, and normal
lordosis was present. Forward flexion was to 70 degrees, and
backward extension, lateral flexion, and rotation to 30
degrees each, all with pain, and there was tightness and
tenderness upon palpation of lumbosacral spine throughout the
range of motion. Muscle strength was 5/5 bilaterally.
Repetitive range of motion testing for pain, weakness,
fatigability, and incoordination showed the same range, with
no change. X-rays of the lumbosacral spine revealed minimal
to moderate arthritic changes with narrowing of corresponding
disc spaces, and the examiner opined that this was more
likely of separate etiology from the veteran's service-
connected lumbosacral strain, and resulted from age
progression.
June 2004 VA outpatient records document the veteran's
complaints of chronic low back pain. Examination in October
showed some tenderness over the lower paraspinal muscles, and
the assessment was low back strain. In August 2005, the
veteran stated that chronic low back pain had not worsened.
In November, he complained of low back pain upon arising in
the morning and after prolonged sitting. He stated that
working out at a gym made him feel better. On examination,
gait was normal. The diagnosis was spinal stenosis with no
evidence of myelopathy, with the majority of complaints
related to positional back pain. Physical therapy for lumbar
spine stretching and strengthening was planned.
At the September 2006 Board hearing, the veteran testified
about the degree of severity of his service-connected low
back disability and how it impaired him industrially. He
stated that he was currently employed on a full-time basis at
a gas station, and capable of lifting up to 20 pounds of
weight. He stated that he had no problems driving a car, and
that he was able to perform household chores with rest
breaks.
Clearly, the evidence provides no basis for more than a 10%
rating for lumbosacral strain, as there was no evidence of
the symptoms required for a 20% rating, i.e., forward flexion
of the thoracolumbar spine to 60 degrees or less; combined
range of motion of the thoracolumbar spine to 120 degrees or
less; or muscle spasm or guarding that is severe enough to
result in an abnormal gait or abnormal spinal contour such as
scoliosis, reversed lordosis, or abnormal kyphosis
The Board also points out that, when evaluating
musculoskeletal disabilities, the VA may, in addition to
applying schedular criteria, consider granting a higher
rating in cases in which the claimant experiences additional
functional loss due to pain, weakness, excess fatigability,
or incoordination, to include with repeated use during flare-
ups, and those factors are not contemplated in the relevant
rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v.
Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of
38 C.F.R. §§ 4.40 and 4.45 are to be considered in
conjunction with the DCs predicated on limitation of motion
(see Johnson v. Brown, 9 Vet. App. 7 (1996).
In this case, however, functional loss due to pain, weakness
and fatigability has already been taken into consideration in
the assignment of the 10% percent rating.
Hence, the record presents no basis for assignment of any
higher initial rating based on the DeLuca factors alone,
inasmuch as functional impairment due to pain is contemplated
by the current rating. As noted above, repetitive range of
motion testing of the low back for pain, weakness,
fatigability, and incoordination on the May 2004 VA
examination showed the same range, with no change.
Further, no other DC provides any basis for assignment of any
higher rating. The veteran is not service connected for low
back arthritis or spinal stenosis, and thus there is no basis
for evaluation of the service-connected low back disability,
lumbosacral strain, under any other rating criteria. As
noted above, the May 2004 VA examiner specifically opined
that the veteran's lumbosacral arthritic changes with
narrowing of corresponding disc spaces was more likely of
separate etiology from the veteran's service-connected
lumbosacral strain, and resulted from age progression.
For all the foregoing reasons, the Board finds that the claim
for a rating in excess of 10% for lumbosacral strain must be
denied. In reaching this conclusion, the Board has
considered the applicability of the benefit-of-the-doubt
doctrine. However, as the preponderance of the evidence is
against the claim, that doctrine is not for application. See
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
A rating in excess of 10% for lumbosacral strain is denied.
____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs